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Flynn with Respect to Statements Made by Him to a Journalist

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Flynn with Respect to Statements Made by Him to a Journalist TRANSLATION REPORT TO THE CANADIAN JUDICIAL COUNCIL OF THE INQUIRY COMMITTEE APPOINTED PURSUANT TO SUBSECTION 63(1) OF THE JUDGES ACT TO CONDUCT AN INQUIRY CONCERNING MR. JUSTICE BERNARD FLYNN WITH RESPECT TO STATEMENTS MADE BY HIM TO A JOURNALIST WHOSE ARTICLE APPEARED IN THE NEWSPAPER LE DEVOIR ON FEBRUARY 23, 2002. DECEMBER 12, 2002 REPORT BY THE INQUIRY COMMITTEE 2 COMPOSITION OF COMMITTEE Inquiry Committee: - The Chief Justice of New Brunswick, Joseph Z. Daigle, Chairperson. - Chief Judge Alban Garon of the Tax Court of Canada. - Paul Bédard, lawyer and member of the Montreal firm Gowling, Lafleur, Henderson. Counsel: - L. Yves Fortier, C.C., Q.C., Independent Counsel, accompanied by Leigh D. Crestohl of his firm; - Gérald Tremblay Q.C., Counsel for Bernard Flynn J., accompanied by François Grondin of his firm. - François Aquin, Counsel to the Inquiry Committee, accompanied by Carla Chamass of his firm. REPORT BY THE INQUIRY COMMITTEE 3 SUMMARY In a letter to the Canadian Judicial Council on March 28, 2002, the Honourable Paul Bégin, Minister of Justice and Attorney General of Quebec, requested that an inquiry be held pursuant to subsection 63(1) of the Judges Act concerning Mr. Justice Bernard Flynn with respect to statements he allegedly made to a journalist whose article appeared in the newspaper Le Devoir on February 23, 2002. The Honourable Paul Bégin asked the Canadian Judicial Council that the inquiry he requested deal with a possible failure by Mr. Justice Flynn in the due execution of his office, in particular with regard to his duty to act in a reserved manner. On April 24, 2002 the Honourable Paul Bégin confirmed to the Canadian Judicial Council that he was asking for the inquiry to be held on the ground stated in paragraph 65(2)(c) of the Judges Act. The members of the Committee disapprove the communication and statements made by Mr. Justice Bernard Flynn reported in the article in the newspaper Le Devoir on February 23, 2002 and conclude that in keeping with his duty to act in a reserved manner he should have refrained from making public comments about the transaction involving his wife. They consider these statements to be inappropriate and unacceptable. However, in the Committee’s opinion, the conduct of Mr. Justice Bernard Flynn does not mean he has become incapacitated or disabled from the due execution of the office of judge within the meaning of subsection 65(2) of the Judges Act, and for this reason it does not recommend that Mr. Justice Bernard Flynn be removed from office. REPORT BY THE INQUIRY COMMITTEE 4 TABLE OF CONTENTS Page I- MANDATE OF THE COMMITTEE ........................................................................... 5 II- FACTUAL BACKGROUND ...................................................................................... 13 III- THE TEST FOR REMOVAL ..................................................................................... 20 IV- SUMMARY OF THE SUBMISSIONS OF THE PARTIES .................................... 24 V- ANALYSIS AND CONCLUSIONS ............................................................................. 27 A. The duty to act in a reserved manner .......................................................... 27 B. The image of a judge : integrity, impartiality and good judgment ........ 29 C. Statements by judges out of court .............................................................. 33 D. Application of the principles to the facts ................................................. 37 REPORT BY THE INQUIRY COMMITTEE 5 REPORT BY INQUIRY COMMITTEE MEMBERS DAIGLE, CHIEF JUSTICE, GARON, CHIEF JUDGE, BÉDARD, LAWYER I- MANDATE OF THE COMMITTEE [1] On March 28, 2002 the Honourable Paul Bégin, in his capacity as Minister of Justice and Attorney General of Quebec, asked the Canadian Judicial Council to commence an inquiry pursuant to subsection 63(1) of the Judges Act into statements which Mr. Justice Bernard Flynn allegedly made, according to the February 23, 2002 edition of the newspaper Le Devoir, regarding the sale and transfer of assets of the Town of L'île-Dorval to local residents. In a letter of April 24, 2002 to the Council the Attorney General subsequently confirmed his request that an inquiry be commenced to determine whether, in voicing his opinion in the circumstances, Mr. Justice Flynn had become incapacitated or disabled pursuant to paragraph 65(2)(c) of the Judges Act from the due execution of the office of judge, in particular with regard to his duty to act in a reserved manner. [2] Under subsection 63(1) of the Judges Act, a request for an inquiry by the Minister of Justice and Attorney General of Quebec is mandatory. Consequently, the Council must hold an inquiry in this matter. This is the fourth time since the Canadian Judicial Council was created in 1971 that an inquiry requested pursuant to subsection 63(1) of the Judges Act, either by the Minister of Justice of Canada or the Attorney General of a REPORT BY THE INQUIRY COMMITTEE 6 province, is held in public. The three other cases were Marshall in 1990, Bienvenue in 1996 and Flahiff in 1999. [3] In accordance with section 63 of the Canadian Judicial Council By-laws, the inquiry is public. In conducting this inquiry the Committee has the same powers as a superior court to summon witnessess and to require them to file and produce documents and other evidence which the Committee deems requisite to a “full investigation”, as required by paragraph 63(4)(a) of the Judges Act. [4] On October 23, 2002 the Canadian Judicial Council announced the creation of this Inquiry Committee, consisting of two of its members, with the addition of a lawyer designated by the Minister of Justice of Canada to sit as the third member. [5] L. Yves Fortier, Q.C., was appointed to act as independent counsel in the inquiry by the Chairperson of the Judicial Conduct Committee, Chief Justice Richard J. Scott. Under section 61 of the Canadian Judicial Council By-laws, an independent counsel acts at arm’s length from the Council and the Inquiry Committee in the inquiry. He must present the complaint to the Inquiry Committee in accordance with the law and his best judgment of what is required in the public interest. REPORT BY THE INQUIRY COMMITTEE 7 [6] For its part, the Inquiry Committee appointed François Aquin to act as counsel to the Committee, his function being in particular to advise members of the Committee on various points of law which might arise in the course of the inquiry. [7] Gérald Tremblay, Q.C., was retained by Mr. Justice Flynn to represent him before the Inquiry Committee. [8] The Inquiry Committee held a hearing in Montreal on October 28, 2002. It heard submissions from L. Yves Fortier, the independent counsel, and Gérald Tremblay, counsel for Mr. Justice Bernard Flynn. [9] No witnesses were heard at the hearing. Mr. Justice Flynn was not present, but had assured the Committee he would be available if his testimony were needed. [10] The independent counsel set out the sequence of relevant events by filing a series of exhibits, including the article by Kathleen Lévesque published at page A1-14 of the newspaper Le Devoir on February 23, 2002 which led to the request of the Minister of Justice of Quebec for an inquiry. That article reads as follows: [TRANSLATION] LE DEVOIR, February 23, 2002 L'Île-Dorval BOISCLAIR COULD INVALIDATE SALE REPORT BY THE INQUIRY COMMITTEE 8 Bourque calls for temporary withdrawal of Peter Yeomans Judge among residents Kathleen Lévesque Le Devoir The former mayor of Dorval, currently a member of the executive committee of the City of Montréal, Peter Yeomans, is not alone at the centre of a stormy controversy surrounding the sale of property on Île-Dorval to cottage owners. Among the residents is Superior Court judge Bernard Flynn, who sees the conversion of this public property to private co-ownership as a means of preserving [TRANSLATION] “vested rights in this little kingdom“. Yesterday Le Devoir disclosed that all the owners of cottages on Île-Dorval, including Mr. Yeomans, purchased the land, buildings and equipment from the old municipality, now amalgamated with Montréal, for $25,000 without first obtaining authorization from the Minister of Municipal Affairs. Reacting to this headline, the Minister of Municipal Affairs André Boisclair said that he is looking into the possibility of invalidating the deed of sale registered three days before the merger of the 28 towns in the Montréal area. The leader of the opposition, Pierre Bourque, for his part, called for the temporary withdrawal of Mr. Yeomans from the executive committee, but the mayor of Montréal, Gérald Tremblay, regarded this as premature. Regarding this sensitive situation, Bernard Flynn J., contacted at the court house yesterday (his cottage officially belongs to his wife), felt that there was nothing immoral about this sale, which was [TRANSLATION] “administrative in nature”. “We must have vested rights in this little kingdom which harms no one and which is not a kingdom of millionaires”, Mr. Justice Flynn maintained. [. .] “and the merger is going to change all that? I am surprised that you do not see the reasonableness of what we are trying to do. We are trying to keep what belongs to us. Nothing more.” According to the judge, the purchase of properties from the municipality was to ensure that the cottagers would control the administration of the island and access to it. It would also avoid an increase in municipal taxes as a result of the forced merger. [TRANSLATION] “We were aware that it might not be valid, but we also knew that there was a good argument to be made”, Bernard Flynn explained. “Personally, I said to myself: this is a perfectly reasonable solution which costs no one anything, which does not give undue advantage to anyone, which makes it possible to more or less preserve the status quo and at the same time resolve an administrative problem for the REPORT BY THE INQUIRY COMMITTEE 9 City of Montréal. In other words, it is an elegant solution to everyone's problem”.
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